18-609
IN THE
___________
UNITED STATES,
RESPONDENT.
___________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
__________
BRIEF FOR THE CATO INSTITUTE
AS AMICUS CURIAE
IN SUPPORT OF PETITIONER
__________
Ilya Shapiro
Counsel of Record
Trevor Burrus
Michael Finch
CATO INSTITUTE
1000 Mass. Ave. N.W.
Washington, D.C. 20001
(202) 842-0200
ishapiro@cato.org
tburrus@cato.org
December 6, 2018 mfinch@cato.org
i
QUESTIONS PRESENTED
TABLE OF CONTENTS
QUESTIONS PRESENTED ......................................... i
TABLE OF AUTHORITIES ....................................... iii
INTEREST OF THE AMICUS CURIAE .................... 1
INTRODUCTION AND SUMMARY OF
ARGUMENT........................................................... 1
ARGUMENT ................................................................ 4
I. THE CLEAN WATER ACT DOES NOT APPLY
TO NON-NAVIGABLE WATERS THAT DO NOT
ABUT INTERSTATE WATERS ............................ 4
A. The Commerce Clause Does Not Permit the
CWA to Reach Private Intrastate Waters ......... 4
B. CWA Jurisdiction Is Limited by the Textual
Requirements of “Navigable Waters” and
“Preserving the Rights of the States” ................ 6
C. The Nexus Test Is an Exception, Not a General
Rule, for CWA Jurisdiction ................................ 8
II. DIVERGENT TREATMENT OF RAPANOS
SHOWS WHY THIS COURT MUST CLARIFY
THAT, WHEN APPLYING PRECEDENT
WHERE THERE IS NO MAJORITY OPINION,
COURTS SHOULD CONSIDER ONLY
PLURALITY AND CONCURRING OPINIONS . 10
CONCLUSION .......................................................... 13
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Community for Creative Non-Violence v. Reid,
490 U.S. 730 (1989) .................................................. 7
Ex parte Boyer, 109 U.S. 629 (1884) ........................ 6-7
Gonzales v. Raich, 125 S. Ct. 2195 (2005) ............... 4-5
Gregg v. Georgia, 428 U.S. 153 (1976) ...................... 10
Marks v. United States, 430 U.S. 188 (1977) .. 3, 10, 11
Precon Dev. Corp. v. U.S. Army Corps of Eng’rs,
633 F.3d 278 (4th Cir. 2011). ................................. 11
Rancho Viejo LLC v. Norton,
334 F.3d 1158 (D.C. Cir. 2003) ................................ 5
Rapanos v. United States,
547 U.S. 715 (2006) ........................................ passim
Solid Waste Agency v. U.S. Army Corps of Eng’rs,
531 U.S. 159 (2001) .......................................... 6, 7, 9
The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1871) .. 6
United States v. Bailey,
571 F.3d 791 (8th Cir. 2009) .................................. 11
United States v. Cundiff,
555 F.3d 200 (6th Cir. 2009) .................................. 11
United States v. Donovan,
661 F.3d 174 (3d Cir. 2011).................................... 11
United States v. Gerke Excavating, Inc.,
464 F.3d 723 (7th Cir. 2006) .................................. 11
United States v. Johnson,
467 F.3d 56 (1st Cir. 2006) .................................... 11
iv
Statutes
33 U.S.C. § 1344(a) ...................................................... 1
33 U.S.C. § 1362(7) ...................................................... 1
1
ARGUMENT
I. THE CLEAN WATER ACT DOES NOT APPLY
TO NON-NAVIGABLE WATERS THAT DO
NOT ABUT INTERSTATE WATERS
A. The Commerce Clause Does Not Permit the
CWA to Reach Private Intrastate Waters
The interstate-commerce regulatory power extends
beyond actual interstate activity only when those ac-
tivities are economic, and when taken in the aggregate
would substantially affect interstate commerce.
United States v. Lopez, 514 U.S. 549 (1995).
The wetlands regulation as applied here does not
directly regulate “channels” or “instrumentalities of
commerce,” id. at 559, but regulates activity that may
indirectly affect channels or instrumentalities. Accord-
ingly, it is justifiable solely under Lopez’s third prong:
as regulation of activity that “substantially affects” in-
terstate commerce. Id. at 559–60. Yet, as United States
v. Morrison made clear, isolated local activity cannot
be aggregated under the substantial effects test unless
the activity is itself “economic” in nature. 529 U.S. 598,
610 (2000). The Court later expressly reiterated Mor-
rison’s statement that, under the “substantial effects”
test, “economic activity” forms the proper basis for ag-
gregation. See Gonzales v. Raich, 545 U.S. 1,25 (2005).
Indeed, the Raich Court upheld the Controlled Sub-
stances Act not only because the CSA “directly regu-
lates economic, commercial activity,” including the
“production, distribution, and consumption of com-
modities,” id. at 26, but because the CSA does so with
the intent to affect prices and distribution within a
larger market. Id. at 19 n.29 (noting that in Wickard
v. Filburn, Congress sought to “protect and stabilize”
5
F.3d 316 (5th Cir. 2008). The Ninth Circuit below, at-
tempting to interpret Marks, assumed without decid-
ing that it could look to dissenting opinions to deter-
mine what the “narrowest grounds” for concurring
opinion’s might be. United States v. Robertson, 875
F.3d 1281, 1290 (2017).
By considering the dissenting opinions in Rapanos
to determine the holding of that case, the lower courts
have imposed an extra, or different, requirement than
did Marks. Some lower courts do not look merely to the
concurring opinions to find the narrowest grounds but
engage in guesswork as to what all the justices might
have ruled. The Ninth Circuit explicitly acknowledged
that it was engaged in this hypothetical reasoning,
stating, “we held that Justice Kennedy’s opinion was
the controlling opinion . . . because it is ‘the narrowest
grounds to which a majority of the justices would as-
sent if forced to choose in almost all cases.’” Robertson,
875 F.3d at 1289 (emphasis added).
But nowhere in Marks did the Court indicate that
lower courts should guess at what justices might rule.
Nor did it say that lower courts were to consider dis-
sents. The only opinions mentioned are concur-
rences—those concurring with the plurality, not any
overlap that might occur with the dissents.
The Court should thus use this case as a vehicle for
clarifying that, in cases where there is no agreement
on the reasoning behind a particular judgment, the
rule is the ground on which the concurring opinion and
pluralities agree—or that there is simply no rule at all.
13
CONCLUSION
For these reasons, and those stated by the Peti-
tioner, the Court should grant the petition.
Respectfully submitted,
Ilya Shapiro
Counsel of Record
Trevor Burrus
Michael Finch
CATO INSTITUTE
1000 Mass. Ave. N.W.
Washington, D.C. 20001
(202) 842-0200
December 6, 2018 ishapiro@cato.org